DEPARTMENT OF HEALTH & HUMAN SERVICES

Centers for Medicare & Medicaid Services

7500 Security Boulevard, Mail Stop S2-26-12
Baltimore, Maryland 21244-1850

Center for Medicaid, CHIP and Survey & Certification

SMDL# 10-015
ACA # 6

August 6, 2010

Re: Improving Access to Home and Community-Based Services

Dear State Medicaid Director:

The purpose of this letter is to inform you of several changes to Section 1915(i) of the Social Security Act
(the Act) made by the Affordable Care Act (ACA)1. These changes, which become effective October 1,
2010, include revised and new 1915(i) provisions for removal of barriers to offering home and community-
based services (HCBS) through the Medicaid State plan. This letter is intended to provide States guidance
on those important changes to the law.

Background
Section 6086 of the Deficit Reduction Act of 2005 (DRA) added section 1915(i) to the Act. While this
State plan service package includes many similarities to options and services available through 1915(c)
HCBS waivers, a significant difference is that 1915(i) does not require individuals to meet an institutional
level of care in order to qualify for HCBS. Section 1915(i) provides States an opportunity to offer services
and supports before individuals need institutional care, and also provides a mechanism to provide State
plan HCBS to individuals with mental health and substance use disorders. As originally enacted, however,
States were unable to target 1915(i) services to particular populations within the State, and could only serve
individuals whose incomes did not exceed 150 percent of the Federal poverty level (FPL). Additionally,
the original service package available under 1915(i) included some, but not all, of the HCBS available
through waivers.

The changes to 1915(i) under the ACA enhance an important tool for States in their efforts to serve
individuals in the most integrated setting and to meet their obligations under the Americans with
Disabilities Act (the ADA) and the Olmstead decision. In order to promote State utilization of 1915(i), the
ACA includes changes that enable States to target HCBS to particular groups of people, to make HCBS
accessible to more individuals, and to ensure the quality of the HCBS.

Improvements to Section 1915(i) in the Affordable Care Act

The following information summarizes major changes and additions to section 1915(i) under the ACA 1.

1
Section 2402(b) through 2402(f) of the Affordable Care Act (Patient Protection and Affordable Care Act, P.L. 111-148,
enacted March 23, 2010, together with the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, enacted arch 30,
2010).
Page 2 – State Medicaid Director

Number Served & Statewideness

Under the ACA, States may continue to specify needs-based eligibility criteria but they are no longer
permitted to limit the number of eligible individuals who can receive 1915(i) State plan HCBS or establish
a waiting list for State plan HCBS. Additionally, States may not limit the availability of 1915(i) services to
specific geographic areas or political subdivisions of the State (statewideness). As with other State plan
services, 1915(i) State plan HCBS must be offered to all eligible individuals (as defined by the State) on a
statewide basis. However, States are afforded new flexibility to target specific 1915(i) services to State-
specified populations (see “Targeted Benefits”). States are required to report to the Centers for Medicare
& Medicaid Services (CMS) annually, to project the number of individuals who are expected to receive
1915(i) State plan HCBS in a year, and to submit the actual number of individuals served.

If enrollment of eligible individuals exceeds a State’s projected enrollment estimate provided in a CMS-
approved 1915(i) State plan amendment (SPA), as included under the DRA, Section 1915(i) continues to
permit States to modify the non-financial needs-based eligibility criteria without prior approval by CMS.
States need only to notify CMS and the public at least 60 days before exercising the option to modify
needs-based eligibility criteria. However, the ACA does revise the length of the grandfathering period for
individuals under this adjustment authority specified at section 1915(i)(1)(D)(ii)(II). If a State chooses to
revise its needs-based eligibility criteria, it must continue offering 1915(i) services in accordance with
individual service plans to participants who do not meet the new revised needs-based criteria, but continue
to meet the former needs-based criteria, for as long as the State plan HCBS option is authorized.

Financial Eligibility
States continue to have the option to provide State plan HCBS to individuals with incomes up to 150
percent of the FPL who are eligible for Medicaid under an eligibility group covered under the State plan
without regard to whether such individuals need an institutional level of care. All individuals served under
1915(i), regardless of their income levels, must meet the non-financial needs-based criteria that the State
establishes to access 1915(i) State plan HCBS. As a reminder, each State requesting to add 1915(i) to its
State plan is required to demonstrate that the needs-based criteria for 1915(i) services are less stringent than
the State’s institutional level of care criteria.

The ACA adds a new section to 1915(i) that allows States the option of providing services to individuals
with income up to 300 percent of the Supplemental Security Income (SSI) Federal benefit rate (FBR)2.
While individuals served in this new eligibility group must be eligible for HCBS under a 1915(c) , (d), or
(e) waiver or 1115 demonstration program, they do not have to be enrolled and receiving services in either
waiver program. For this eligibility group, States are also permitted to use institutional eligibility and
post-eligibility rules in the community, in the same manner they would under a 1915(c) waiver. Post
eligibility rules determine the amount (if any) for which an individual is liable to pay for the cost of
their 1915(i) HCBS.

Targeted Benefits
With the changes enacted through the ACA, States may design service packages without regard to
comparability, as described at 1902(a)(10)(B). States are able to offer HCBS to specific, targeted
populations. States will also be permitted to offer services that are different in amount, duration, and scope
2
For 2010, 300 percent of SSI is equal to $2,022 per month.
Page 3 – State Medicaid Director

to specific population groups, including eligibility groups as authorized under 1915(i)(6)(c), either through
one 1915(i) service package, or multiple 1915(i) service packages. For example, a State could propose to
have one 1915(i) benefit that is targeted and includes specific services for persons with physical and/or
developmental disabilities, and another 1915(i) benefit targeted to persons with chronic mental illness.
Another State might implement one 1915(i) benefit that is targeted to children with autism and adults with
HIV/AIDS, but specify different services to meet the needs for each targeted population group within the
same overall benefit package.

If a State chooses to implement this option to provide State plan HCBS to a targeted population(s), the
ACA authorizes CMS to approve such a SPA for a 5-year period. States will be able to renew approved
1915(i) services for additional 5-year periods if CMS determines, prior to the beginning of the renewal
period, that the State met Federal and State requirements and that the State’s monitoring is in accordance
with the Quality Improvement Strategy specified in the State’s approved SPA.

Services
Section 1915(i) allows States to include any or all of the services that are listed in section 1915(c)(4)(B) of
the Act. These services include case management, homemaker/home health aide, personal care, adult day
health, habilitation, and respite care services. In addition, the following services may be provided to
persons with chronic mental illness: day treatment, other partial hospitalization services, psychosocial
rehabilitation services, and clinic services (whether or not furnished in a facility). The ACA revised
1915(i) so that States may now offer, “such other services requested by the State as the Secretary may
approve.” As a result of this change, States will now be permitted to propose “other services” (not
including room and board) in a 1915(i) SPA that CMS will evaluate and possibly approve.

States continue to have the option to offer self-direction to individuals receiving State plan HCBS, and
CMS urges all States to afford participants the opportunity to direct some or all of their HCBS. Self-
direction permits participants to plan and purchase their HCBS under their direction and control or through
an authorized representative. As with all 1915(i) services, the provision of these services must be in
accordance with an individualized plan of care, which is based upon an independent assessment and a
person-centered process driven by what is important to the participant. The services that the participant or
his/her representative will self-direct and the methods by which he/she will self-direct and the supports that
are available to the participant all must be specified in the plan of care.

Compliance
States will be required to continue to comply with all other provisions of 1915(i) as well as other sections
of the Act in the administration of the State plan under this Title.

Submission Procedures
These new and revised provisions will become effective October 1, 2010. Regulations at 42 CFR
430.12(c)(i) require States to amend their State plans to take account of changes in Federal law. Therefore,
States with approved 1915(i) services prior to this date that include provisions impacted by the changes
under the ACA, should submit a SPA no later than December 31, 2010, that will take effect retroactive to
October 1, 2010.
Page 4 – State Medicaid Director

To incorporate a new 1915(i) service package into your State plan, or to revise existing approved 1915(i)
services, please submit a SPA electronically to the Associate Regional Administrator for Medicaid in your
CMS regional office.

CMS encourages States to submit questions and comments to CMS regarding the statutory changes to
1915(i) made in the ACA through the mailbox at CMCSPPACAQuestions@cms.hhs.gov. If you have
any additional questions, please contact Ms. Barbara Edwards, Director of the Disabled and Elderly Health
Programs Group, at 410-786-0325.

Sincerely,

/s/

Cindy Mann
Director
Enclosure
cc:
CMS Regional Administrators

CMS Associate Regional Administrators

Ann C. Kohler
NASMD Executive Director
American Public Human Services Association

Joy Wilson
Director, Health Committee
National Conference of State Legislatures

Matt Salo
Director of Health Legislation
National Governors Association

Debra Miller
Director for Health Policy
Council of State Governments

Christine Evans, M.P.H.

Director, Government Relations
Association of State and Territorial Health Officials

Alan R. Weil, J.D., M.P.P.

Executive Director
National Academy for State Health Policy
 Enclosure
The Affordable Care Act
Section 2402 (b) ADDITIONAL STATE OPTIONS.—Section 1915(i) of the Social
Security Act (42 U.S.C. 1396n(i)) is amended by adding at the end the following new paragraphs:
Statutory Provision Changes to the
Existing 1915(i)
Benefit
(6) STATE OPTION TO PROVIDE HOME AND
COMMUNITY-BASED SERVICES TO INDIVIDUALS
ELIGIBLE FOR SERVICES UNDER A WAIVER.—
(A) IN GENERAL.—A State that provides home and
community-based services in accordance with this subsection
to individuals who satisfy the needs-based criteria
for the receipt of such services established under paragraph
(1)(A) may, in addition to continuing to provide such services
to such individuals, elect to provide home and community-
based services in accordance with the requirements
of this paragraph to individuals who are eligible for home
and community-based services under a waiver approved
for the State under subsection (c), (d), or (e) or under
section 1115 to provide such services, but only for those
individuals whose income does not exceed 300 percent of
the supplemental security income benefit rate established
by section 1611(b)(1).
AND
New Features for the 1915(i) Benefit
Allows States to add a new optional Medicaid eligibility
group to provide 1915(i) to individuals who have income that
does not exceed 300% of SSI Federal Benefit Rate and are
eligible for HCBS under a waiver. To be eligible, the
individuals must still also meet 1915(i) needs-based criteria
established by the State, as approved in a SPA.
This new provision gives States the option to offer HCBS to
individuals with higher incomes (up to 300% of SSI FBR)
who are eligible for an approved waiver in the State. While
individuals must be eligible for a 1915(c) waiver
(institutional and any specific waiver targeting criteria) or
1115 demonstration program, they do not have to actually be
enrolled and receiving waiver services in either waiver
program.
AND
1
 Statutory Provision Changes to the New Features for the 1915(i) Benefit
Existing 1915(i)
Benefit
2402(d) OPTIONAL ELIGIBILITY CATEGORY TO PROVIDE For this eligibility group, States are also permitted to use
FULL MEDICAID BENEFITS TO INDIVIDUALS RECEIVING institutional eligibility and post-eligibility rules in the
HOME AND COMMUNITY-BASED SERVICES UNDER A community, in the same manner they would under a 1915(c)
STATE PLAN AMENDMENT.— waiver.
(1) Section 1902(a)(10)(A)(ii) of the Social
Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)), as amended by
section 2304(a)(1), is amended—
(A) in subclause (XX), by striking „„or‟‟ at the end;
(B) in subclause (XXI), by adding „„or‟‟ at the end;
and
(C) by inserting after subclause (XXI), the following
new subclause:
„„(XXII) who are eligible for home and community-
based services under needs-based criteria
established under paragraph (1)(A) of section
1915(i), or who are eligible for home and community-
based services under paragraph (6) of such
section, and who will receive home and community-based
services pursuant to a State plan amendment
under such subsection;‟‟.

(2) CONFORMING AMENDMENTS.—

(A) Section 1903(f)(4) of the Social Security Act (42
U.S.C. 1396b(f)(4)), as amended by section 2304(a)(4)(B),
is amended in the matter preceding subparagraph (A),
H. R. 3590—186 by inserting „„1902(a)(10)(A)(ii)(XXII),‟‟ after
„„1902(a)(10)(A)(ii)(XXI),‟‟.
(B) Section 1905(a) of the Social Security Act (42 U.S.C.
1396d(a)), as so amended, is amended in the matter preceding
paragraph (1)—
(i) in clause (xv), by striking „„or‟‟ at the end;
2
 Statutory Provision Changes to the New Features for the 1915(i) Benefit
Existing 1915(i)
Benefit
(ii) in clause (xvi), by adding „„or‟‟ at the end;
and
(iii) by inserting after clause (xvi) the following
new clause:
„„(xvii) individuals who are eligible for home and community-
based services under needs-based criteria established
under paragraph (1)(A) of section 1915(i), or who are eligible
for home and community-based services under paragraph (6)
of such section, and who will receive home and community-based
services pursuant to a State plan amendment under such
subsection,”.
(6)(B) APPLICATION OF SAME REQUIREMENTS FOR
INDIVIDUALS SATISFYING NEEDS-BASED CRITERIA.— When States choose to serve individuals through the new
Subject to subparagraph (C), a State shall provide home and optional eligibility category, all other requirements continue
community- based services to individuals under this paragraph to apply (ex., needs-based criteria evaluation and assessment,
in the same manner and subject to the same requirements person-centered planning).
as apply under the other paragraphs of this subsection
to the provision of home and community-based services
to individuals who satisfy the needs-based criteria established
under paragraph (1)(A).
(6)(C) AUTHORITY TO OFFER DIFFERENT TYPE, For States that choose to add the new optional eligibility
AMOUNT, DURATION, OR SCOPE OF HOME AND group for individuals with incomes up to 300% SSI FBR,
COMMUNITY-BASED SERVICES.— there is an additional flexibility to offer different types,
A State may offer home and community-based services to amount, duration, or scope of HCBS to these eligible
individuals under this paragraph that differ in type, amount, individuals. All services have to be those allowed under
duration, or scope from the home and community-based services 1915(c)(4)(B), approved by CMS, and not include room and
offered for individuals who satisfy the needs-based criteria board.
established under paragraph (1)(A), so long as such services are
within the scope of services described in paragraph (4)(B) of
subsection (c) for which the Secretary has the authority to approve
a waiver and do not include room or board.
3
 Statutory Provision Changes to the New Features for the 1915(i) Benefit
Existing 1915(i)
Benefit
(7) STATE OPTION TO OFFER HOME AND COMMUNITY- Allows States to provide HCBS to specific targeted
BASED SERVICES TO SPECIFIC, TARGETED populations. States are now also allowed the option to have
POPULATIONS.— more than one 1915(i) benefit by target group.
(A) IN GENERAL.—A State may elect in a State plan
amendment under this subsection to target the provision
of home and community-based services under this subsection
to specific populations and to differ the type, amount, duration, or
scope of such services to such specific populations.
(7)(B) 5-YEAR TERM.— (i) If States choose to target populations, the SPA will be
(i) IN GENERAL.—An election by a State under approved for a 5-year period.
this paragraph shall be for a period of 5 years.
(ii) PHASE-IN OF SERVICES AND ELIGIBILITY
PERMITTED DURING INITIAL 5-YEAR PERIOD.—
A State making an election under this paragraph may, during the
first 5-year period for which the election is made, phase-in the
enrollment of eligible individuals, or the provision of services to
such individuals, or both, so long as all eligible individuals in the
State for such services are enrolled, and all such services are
provided, before the end of the initial 5-year period.

(7)(C) RENEWAL.—An election by a State under this paragraph States may renew for additional 5-year periods if CMS
may be renewed for additional 5-year terms if the determines prior to beginning of renewal period that the State
Secretary determines, prior to beginning of each such met all quality and programmatic requirements.
renewal period, that the State has—
(i) adhered to the requirements of this subsection
and paragraph in providing services under such an
election; and
„„(ii) met the State‟s objectives with respect to
quality improvement and beneficiary outcomes.‟‟.

1915(i)(c) REMOVAL OF LIMITATION ON SCOPE OF This change allows

4
 Statutory Provision Changes to the New Features for the 1915(i) Benefit
Existing 1915(i)
Benefit
SERVICES.—Paragraph (1) of section 1915(i) of the Social States to provide
Security Act (42 U.S.C. 1396n(i)), as amended by subsection (a), “other services” as
is amended by striking „„or such other services requested by the permitted under
State as the Secretary may approve‟‟. 1915(c) waivers.
States must continue
to identify and define
services (including
provider
qualifications) in a
CMS-approved
1915(i) SPA.
(e) ELIMINATION OF OPTION TO LIMIT NUMBER OF This provision
ELIGIBLE INDIVIDUALS OR LENGTH OF PERIOD FOR removes the option
GRANDFATHERED INDIVIDUALS IF ELIGIBILITY for a State to limit
CRITERIA IS MODIFIED.—Paragraph (1) of section number of eligible
1915(i) of such Act (42 U.S.C. 1396n(i)) is amended— individuals who can
(1) by striking subparagraph (C) and inserting the following: receive 1915(i)
services. As a result,
„„(C) PROJECTION OF NUMBER OF INDIVIDUALS TO BE States may no longer
PROVIDED HOME AND COMMUNITY-BASED establish a wait list
SERVICES.—The State submits to the Secretary, in such form for receipt of State
and manner, and upon such frequency as the Secretary shall plan HCBS.
specify, the projected number of individuals to be provided home
and community-based services.‟‟; and
(2) in subclause (II) of subparagraph (D)(ii), by striking This provision
„„to be eligible for such services for a period of at least 12 removes the 12-
months beginning on the date the individual first received month limit from the
medical assistance for such services‟‟ and inserting „„to continue grandfathering
to be eligible for such services after the effective date of the period. If a State
modification and until such time as the individual no longer decides to tighten its
meets the standard for receipt of such services under such needs-based criteria,
5
 Statutory Provision Changes to the New Features for the 1915(i) Benefit
Existing 1915(i)
Benefit
pre-modified criteria‟‟. it must continue
offering 1915(i)
services to
individuals who were
eligible and being
served under the
former standards.

(f) ELIMINATION OF OPTION TO WAIVE This provision This provision also adds a new provision to allow States to
STATEWIDENESS; ADDITION OF OPTION TO WAIVE removes the ability waive comparability. States can now target 1915(i) to
COMPARABILITY.—Paragraph (3) of section for States to limit the specific populations. States are now also allowed the option
1915(i) of such Act (42 U.S.C. 1396n(3)) is amended by striking availability of the to have more than one 1915(i) benefit by target group. As
„„1902(a)(1) (relating to statewideness)‟‟ and inserting 1915(i) benefit to with new Section 1915(i)(7), States that choose to target
„„1902(a)(10)(B) (relating to comparability)‟‟. specific geographic populations will be able to renew the approved 1915(i)
areas or political benefit for additional 5-year periods if CMS determines, prior
subdivisions of the to the beginning of the renewal period, that States met
State (statewideness). Federal and State requirements and the State‟s monitoring is
As with other State in accordance with the Quality Improvement Strategy (QIS)
plan services, 1915(i) specified in the State‟s approved 1915(i) State plan service
State plan HCBS benefit.
must be offered to all
eligible individuals
on a statewide basis.